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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> MARLHENS v. FRANCE - 22862/93 [1995] ECHR 16 (24 May 1995) URL: http://www.bailii.org/eu/cases/ECHR/1995/16.html Cite as: [1995] ECHR 16, (1996) 22 EHRR 285, 21 EHRR 502, (1996) 21 EHRR 502

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In the case of Marlhens v. France (1),

The European Court of Human Rights, sitting, in

accordance with Article 43 (art. 43) of the Convention for the

Protection of Human Rights and Fundamental Freedoms ("the

Convention") and the relevant provisions of Rules of Court A (2),

as a Chamber composed of the following judges:

Mr R. Ryssdal, President,

Mr F. Gölcüklü,

Mr L.-E. Pettiti,

Mr R. Macdonald,

Mr S.K. Martens,

Mr F. Bigi,

Sir John Freeland,

Mr M.A. Lopes Rocha,

Mr L. Wildhaber,

and also of Mr H. Petzold, Registrar,

Having deliberated in private on 23 May 1995,

Delivers the following judgment, which was adopted on

that date:

_______________

Notes by the Registrar

1. The case is numbered 22/1995/528/614. The first number is

the case's position on the list of cases referred to the Court

in the relevant year (second number). The last two numbers

indicate the case's position on the list of cases referred to the

Court since its creation and on the list of the corresponding

originating applications to the Commission.

2. Rules A apply to all cases referred to the Court before the

entry into force of Protocol No. 9 (P9) and thereafter only to

cases concerning States not bound by that Protocol (P9). They

correspond to the Rules that came into force on 1 January 1983,

as amended several times subsequently.

_______________

PROCEDURE

1. The case was referred to the Court by the European

Commission of Human Rights ("the Commission") on 1 March 1995,

within the three-month period laid down by Article 32 para. 1 and

Article 47 (art. 32-1, art. 47) of the Convention. It originated

in an application (no. 22862/93) against the French Republic

lodged with the Commission under Article 25 (art. 25) by

Miss Isabelle Marlhens, a French national, on 29 September 1993.

The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) and to the declaration whereby France

recognised the compulsory jurisdiction of the Court (Article 46)

(art. 46). The object of the request was to obtain a decision

as to whether the facts of the case disclosed a breach by the

respondent State of its obligations under Article 6 para. 1

(art. 6-1).

2. In response to the enquiry made in accordance with

Rule 33 para. 3 (d) of Rules of Court A, the applicant stated

that she wished to take part in the proceedings and designated

the lawyer who would represent her (Rule 30).

3. On 26 April 1995 the applicant's lawyer communicated to

the Registrar the terms of an agreement concluded between her

client and the French Government ("the Government"). The

Government confirmed their acceptance two days later.

The Delegate of the Commission was consulted (Rule 49

para. 2). By letter of 15 May 1995 the Secretary to the

Commission advised the Registrar that the Delegate had no

comments to make.

4. The Chamber to be constituted included ex officio

Mr L.-E. Pettiti, the elected judge of French nationality

(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the

President of the Court (Rule 21 para. 4 (b)). On 5 May 1995, in

the presence of the Registrar, the President drew by lot the

names of the other seven members, namely Mr F. Gölcüklü,

Mr R. Macdonald, Mr S.K. Martens, Mr F. Bigi, Sir John Freeland,

Mr M.A. Lopes Rocha and Mr L. Wildhaber (Article 43 in fine of

the Convention and Rule 21 para. 5) (art. 43).

5. On 20 and 22 May 1995 the Agent of the Government and the

applicant's lawyer provided further details of the costs and

expenses incurred before the Convention institutions.

6. On 23 May 1995 the Court decided to dispense with a

hearing in the case, having satisfied itself that the conditions

for this derogation from its usual procedure had been met

(Rules 26 and 38).

AS TO THE FACTS

7. Miss Isabelle Marlhens, a French national born in 1963,

received a blood transfusion during an operation carried out at

Pau Hospital in December 1982. At the beginning of 1988 it was

discovered that she was infected with the human immunodeficiency

virus (HIV). In July 1994 she was classified as having reached

stage IV, the last stage of infection on the scale of the Atlanta

Center for Disease Control. Tests carried out in December 1992

revealed that she was also a carrier of the hepatitis C virus.

8. On 9 April 1992 the applicant referred her case to the

Compensation Fund for Haemophiliacs and Transfusion Patients

(see, as the most recent authority, the Karakaya v. France

judgment of 26 August 1994, Series A no. 289-B, pp. 38-39,

para. 19). On 7 May 1992 the Fund asked her to produce certain

documents and to fill in a medical questionnaire. On 11 May and

15 July 1992 Miss Marlhens sent the Fund the results of medical

examinations and documents from her medical file. After ordering

an additional inquiry whose results were known on 24 July 1992,

the Fund rejected the applicant's claim on 28 October 1992 on the

ground that no causal link between transfusion and infection

could be established.

9. The applicant appealed against the above decision to the

Paris Court of Appeal on 6 January 1993.

By an order of 4 May 1993 the President of the First

Division set the case down for hearing on 30 June 1993 and

requested the parties to submit their pleadings by 16 June 1993.

On 21 May 1993 Miss Marlhens sent the Fund her pleading and

requested the President of the First Division to grant her

provisional legal aid. On 17 June 1993 the legal aid office

directed her to supply a copy of the impugned decision, but sent

this notice in a letter to her former address, which appeared on

the documents annexed to the request submitted on 21 May 1993.

On 23 June 1993 the registry of the Court of Appeal

received the Fund's pleading.

10. On 6 July 1993, acting in response to letters from the

applicant, the President of the First Division ordered that

pending a decision on the request for legal aid the hearing

should be adjourned until 5 November 1993 and fixed 22 October

as the final date for pleadings to be filed.

11. On 7 September 1993 the legal aid office rejected

Miss Marlhens's request on the ground that she had not produced

a copy of the impugned decision, as she had been asked to do in

the letter of 17 June 1993. The applicant claimed that she had

not received this letter and repeated her request for legal aid

on 24 September, 5 October and 22 October 1993.

12. On 14 October 1993 the applicant sent a recapitulatory

pleading to the President of the First Division and informed him

that, thanks to the intervention of the Commission for Access to

Administrative Documents, she had obtained crucial new evidence

from Pau Hospital, consisting of two record-sheets concerning

anaesthesia administered to her.

13. Miss Marlhens obtained provisional legal aid on

29 October 1993 and full legal aid on 2 November 1993.

14. By an order of 8 November 1993, rectified on 14 December,

the President of the First Division fixed 30 December 1993 as the

final date for pleadings to be filed and set the case down for

hearing on 19 January 1994. Submissions were filed on the

applicant's behalf on 21 December 1993.

On 2 February 1994, on an application made by the Fund at

the hearing, the Court of Appeal ordered an expert opinion with

a view to establishing the cause of infection. In the opinion,

filed on 10 June 1994, the expert concluded that, although there

was no certainty, the transfusion of December 1982 was "strongly

suspected of being the cause" of the infection.

15. The Paris Court of Appeal gave judgment on 8 July 1994.

Noting that the Fund no longer denied the existence of a causal

link between the blood transfusions administered to Miss Marlhens

and her infection, it awarded her compensation in the sum of

2,000,000 French francs (FRF), consisting of FRF 1,500,000 to be

paid immediately and FRF 500,000 to be paid in the event of the

onset of AIDS being confirmed by a medical report. It also

ordered the Fund to pay FRF 5,000 in respect of expenditure

incurred by the applicant but not included in her costs.

16. In a letter of 30 September 1994 the applicant informed

the Secretariat of the Commission that in August 1994 the French

authorities had acknowledged that she was now suffering from AIDS

and had paid her FRF 500,000.

PROCEEDINGS BEFORE THE COMMISSION

17. Miss Marlhens applied to the Commission on

29 September 1993. She alleged that the case had not been heard

within a reasonable time as required by Article 6 para. 1

(art. 6-1) of the Convention.

18. The Commission declared the application (no. 22862/93)

admissible on 6 September 1994. In its report of 17 January 1995

(Article 31) (art. 31), it expressed the unanimous opinion that

there had been a breach of Article 6 para. 1 (art. 6-1). The

full text of the Commission's opinion is reproduced as an annex

to this judgment (1).

_______________

1. Note by the Registrar: for practical reasons this annex will

appear only with the printed version of the judgment

(volume 317-A of Series A of the Publications of the Court), but

a copy of the Commission's report is obtainable from the

registry.

_______________

AS TO THE LAW

19. On 26 April 1995 the Court received from the applicant's

lawyer a document signed by Miss Marlhens on 25 April 1995, which

read as follows:

"I ... hereby declare that I accept the friendly

settlement proposed to me by the French Government in the

case pending in the European Court of Human Rights

between me and that Government, consisting in:

payment of compensation of FRF 150,000;

payment of the costs and expenses incurred in the

proceedings before the European Commission and Court of

Human Rights, on production of the relevant vouchers.

I acknowledge that the payment of these sums will

constitute full and final reparation for all the damage

alleged in this application and will also cover in their

entirety the lawyer's fees and other costs incurred by me

in the case.

I therefore agree, in consideration of the payment of

these sums, to withdraw from these proceedings and not to

institute any further proceedings in this matter against

the French State in the national or international courts.

I note that the French Government will pay me this

compensation as soon as the Court has decided to strike

the case out of its list.

..."

In a letter of 27 April 1995 to the Registrar the Agent

of the Government confirmed this agreement.

The Delegate of the Commission was consulted and raised

no objection.

20. The Agent of the Government and Miss Marlhens's lawyer

subsequently declared that the costs and expenses were entirely

covered by the legal aid granted to the applicant by the

Commission (see paragraph 5 above).

21. The Court takes formal note of the friendly settlement

reached by the Government and the applicant. It discerns no

reason of public policy why the case should not be struck out of

the list (Rule 49 paras. 2 and 4 of Rules of Court A), especially

as in the X v. France, Vallée v. France and Karakaya v. France

judgments (31 March 1992, 26 April 1994 and 26 August 1994,

Series A nos. 234-C, 289-A and 289-B) it has already established

case-law in the matter.

FOR THESE REASONS, THE COURT UNANIMOUSLY

Decides to strike the case out of the list.

Done in English and in French, and notified in writing

under Rule 55 para. 2, second sub-paragraph, of Rules of

Court A on 24 May 1995.

Signed: Rolv RYSSDAL

President

Signed: Herbert PETZOLD

Registrar